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Duffy v. State3/21/1990
ere the man was convicted of inflicting aggravated kidnapping, aggravated sodomy, aggravated battery and making a terrorist threat against his wife. Multiplicity was considered as the danger of receiving more than one sentence for one offense in review, and it was recognized " he State may not split a single offense into separate parts. Where there is a single wrongful act it generally will not furnish the basis for more than one criminal prosecution." Id. at 880. The sequential and geographically separated events justified three separate convictions. The sodomy offense was set aside for other reasons. Roudybush, 686 P.2d 100 followed with the separate and severable examination, different time and different place or different marijuana, which was the test applied. See Smith, 781 P.2d 666. Taylor v. State, 710 P.2d 1019 (Alaska App. 1985) revealed the childrens' non-support crime could not be segmented for separate convictions. Stacking was again rejected in Hunnicutt, 755 P.2d 105 for four offenses of selling two pistols. See State v. Fox, 98 Or. App. 356, 779 P.2d 197 (1989), where attempted murder and attempted assault merge with attempted aggravated felony murder and only a single judgment of conviction was proper under the thesis of double jeopardy preclusion.
Within the waves of case law which beat upon the subject in current adjudication, perhaps the most thoughtful analysis was provided by Justice Exum of the North Carolina Supreme Court in his dissent in State v. Gardner, 315 N.C. 444, 340 S.E.2d 701, 714 (1986) which, in my perspective, identifies the environment even though the case does not specifically tell whether maximum consecutive sentences were provided:
I concede that under Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not preclude punishing this defendant for both felonious breaking or entering and felonious larceny, of which, we must assume, the breaking or entering is an essential element, so long as our legislature so intended.
I think Hunter was incorrectly decided. It is based, in my view, on a misapplication of principles formulated by the United States Supreme Court in earlier cases and designed to resolve double jeopardy questions other than the one presented here and in Hunter. The misapplication is understandable because as the Supreme Court itself acknowledged in Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144-45, 67 L.Ed.2d 275, 284 (1981), its "decisional law in the [double jeopardy] area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Now a majority of our Court has, by slavishly following Hunter and misapplying some of the same precedents there relied on, determined to entangle itself in this Sargasso Sea even after being forewarned by the Court which created it and decided Hunter based upon it. Forewarned, for the majority, is not, alas, to be forearmed.
I concede, of course, that we are bound by Hunter insofar as we must decide this case under the Double Jeopardy clause of the Fifth Amendment. We are not bound to follow Hunter and are free to follow our own precedents on the subject insofar as we base decision on the double jeopardy prohibition contained in the * * * North Carolina Constitution.
The concern expressed by Justice Exum reflects the determined view for Wyoming enunciated by Justice Blume sixty-six years ago in Tobin, 31 Wyo. at 368, 226 P. 681, where the transactional understanding of criminal responsibility was identified:
" he several acts are considered as so many steps or stages in the same
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